African Court's Landmark Opinion Could Reduce Criminalization of Poverty, Prison Overcrowding

press release

Today, a continental court in Africa delivered a landmark opinion on colonial era vagrancy laws, which criminalize activities such as loitering, public indecency, and begging. The judgement has the potential to help reshape criminal justice policy and practice in dozens of African countries and reduce prison overcrowding.

The African Court on Human and Peoples' Rights issued an Advisory Opinion in response to a case brought by the Pan African Lawyers Union (PALU), and found that vagrancy laws or bylaws in nearly every country in Africa discriminate against marginalized populations including women, children and people with disabilities, among others.

"These vague and arbitrary laws, rooted in the era of empire law making, are used to arrest and imprison thousands of poor and marginalized people every day including the poor and the homeless, street children, migrants, people with disabilities, sex workers, LGBTI people, and drug users." said Louise Ehlers, of the Open Society Foundations. "This judgement has the potential to significantly reduce exposure to police violence and incarceration for these communities both in Africa and in other places grappling with a colonial legacy of vague, discriminatory criminal law" she said.

The Open Society Justice Initiative filed an amicus brief in the case, citing the urgent need to decriminalize vagrancy laws in light of the COVID-19 pandemic because the laws over-incarcerate poor and marginalized people, putting them at greater risk of contracting the virus.

"It is in the interest of African states to implement this advisory opinion by repealing all vagrancy laws, which reinforce structural discrimination and penalize poverty," said Stanley Ibe, associate legal officer for Africa at the Open Society Justice Initiative. "Since vagrancy laws contribute to dangerously overcrowded prisons, a hotbed of COVID-19, failing to do so could have disastrous consequences."

British, French, Portuguese, Dutch and Belgians colonists used vagrancy laws to control the streets. They were intentionally broad and vaguely defined, giving law enforcement wide discretion to arrest and detain just about anyone.

These laws are still in place in many former colonies. For example, the very same language introduced to British colonies through the English Vagrancy Act of 1824 is still in use today in some places. In Botswana, the Gambia, Nigeria, Seychelles, Tanzania, Uganda and Zambia you can still be cited for being a "rogue and a vagabond". The penal codes of at least 18 former French colonies including Algeria, Burundi, Burkina Faso, Cameroon, Chad, Comoros, Republic of Congo, Cote d'Ivoire, Gabon, Guinea, Madagascar, Mauritania, Mali, Morocco, Niger, Sahrawi Arab Democratic Republic, Senegal, and Togo contain a similarly worded offence of "vagabondage".

Today's African Court opinion provides clarity on the discriminatory nature of these laws. This will bolster efforts to strike them down in domestic and regional courts across Africa and provide a foundation to limit their enforcement by the police in the short term. This pronouncement, coming from Africa's apex court will also add legal weight and moral authority to broader efforts to address the legacy of slavery, colonialism and structural racism on the continent.

"This is a significant legal victory as it sends a clear message to policymakers across Africa," added Ehlers. "These arcane laws have no place in open, inclusive societies and need to be repealed."

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